Defenses in Fault-based Divorce: Recrimination

Recrimination is a traditional equitable defense to fault-based divorce actions and is based on the principle that a person seeking justice must come to court with clean hands. It seeks to avoid divorce on the ground that the petitioner has engaged in conduct that would entitle the respondent spouse to a divorce. For example, if a wife files for divorce on the ground of her husband's cruelty and if she herself is guilty of committing cruelty against her husband, then the recrimination defense would act to prevent dissolution on the ground of the husband's cruelty.

Some states consider or did consider recrimination to be a comparative defense, rather than an absolute defense, in fault-based divorce proceedings. Before the introduction of no-fault grounds of divorce, recrimination worked as a counterclaim defense.

If the fault counter-alleged by the respondent is more severe than that the petitioner claims, then the court may grant divorce relief to the respondent. It is conceivable that such a scenario could shift the formulation for child custody and support, alimony, fees and costs, and perhaps even property division in a case.

Most states have abolished or limited recrimination as a defense in fault-based divorce. One reason for the restriction is that the recrimination concept invites acrimony and exaggeration of the parties' differences, which might make the marital relationship even less viable. Some states do not consider recrimination as a bar to granting divorce, but rather as one factor to be considered in a case. Of course, there is no role for recrimination in pure no-fault divorce states.

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